& Ors Vs. Union Public Service Commission & Ors.  Insc 1278 (13 December 2007)
& Markandey Katju
out of S.L.P.(c) Nos.23060-23068 of 2005] With:
Appeal Nos. 5894-5902 of 2007 [Arising out of S.L.P.(c) Nos.23484-23492 of
2005] Civil Appeal Nos. 5903-5911 of 2007 [Arising out of S.L.P.(c)
Nos.23571-23579 of 2005] Civil Appeal No. 5912 of 2007 [Arising out of
S.L.P.(c) No.23852 of 2005] Civil Appeal Nos. 5913-5921 of 2007 [Arising out of
S.L.P.(c) No.25764-25772 of 2005] Civil Appeal No. 5922 of 2007 [Arising out of
S.L.P.(c) No.900 of 2006] Contempt Petition ) No.131 of 2006 in S.L.P.(c)
Nos.23060-23068 of 2005. A.K.MATHUR,J.
Leave granted in all the Special Leave Petitions.
these appeals arise against the common order dated 6.10.2005 passed by the
Division Bench of the High Court of Karnataka while disposing of a bunch of
petitions arising out of the common order dated 4.10.2004 passed by the Central
Administrative Tribunal, Bangalore Bench (hereinafter to be referred to as the
Tribunal). The Tribunal by the aforesaid order set aside the recommendations of
the Selection Committee to fill up 8 vacancies belonging to the non-State Civil
Service Officers of Government of Karnataka to the Indian Administrative
Service (IAS) of Karnataka cadre on the ground of mala fides, arbitrariness and
also on the ground that the Selection Committee without application of mind had
awarded marks to the selected candidates in a discriminatory manner. It was
also held by the Tribunal that the Selection Committee was not properly
constituted as per the provisions of Regulation 3 of the Indian Administrative
Service (Appointment by Promotion) Regulations, 1955 (hereinafter to be
referred to as the Regulations of 1955). Out of the bunch of petitions which
were filed before the Karnataka High Court, two petitions were filed by the
Union Public Service Commission ( hereinafter to be referred to as the
Commission), first is that the Chairman of the Selection Committee, Shri Subir Dutta,
Member, U.P.S.C. against whom the allegation of mala fide was leveled and it
was upheld by the Tribunal, second one challenging the finding of the Tribunal
that the Selection Committee was not properly constituted and the Selection
Committee acted arbitrarily and in a discriminatory manner and awarded marks to
the selected candidates. Another batch of petitions (seven in number) was filed
by the selected candidates whose names were recommended for appointment to the
I.A.S. and two writ petitions were filed by the persons who were not
short-listed by the Screening Committee. Hence, all these petitions were
clubbed together and were disposed of by the common order as aforesaid.
Learned Division Bench of the Karnataka High Court after hearing all the parties
found that the allegation of mala fide leveled against Shri Subir Dutta, Member
of the Commission was not well founded, that the Selection Committee was
properly constituted and the Committee did not act in arbitrary or
discriminatory manner while awarding the marks to the selected candidates.
Hence the order of the Tribunal was set aside. Aggrieved against this order
passed by the Division Bench of the Karnataka High Court dated 6.10.2005, the
present appeals were filed by the aggrieved persons. Hence, the appeals have
now finally come up before us for disposal.
appointment to the I.A.S. from the State cadre can be made other than the State
Civil Service in case an incumbent is having outstanding merit and ability and
holds a gazetted post in a substantive capacity and has completed not less than
eight years of service in the State Government on the first day of January of
the year in which his case is being considered in any post which has been
declared equivalent to the post of Deputy Collector in the State Civil Service.
The candidates shall not exceed five times the posts proposed to be filled up
during the year. An incumbent should not have attained the age of 54 years, as
per the Regulations of 1997. Regulation 5 says that a list shall be prepared of
the suitable candidates by the Committee after scrutiny of service records and
personal interview. The Committee has been defined in Regulation 2(i)(a) which
means a Committee as constituted under Regulation 3 of Regulations, 1955. As
per the Regulations, the Committee shall be headed by the Chairman of the
Commission or if the Chairman fails to attend, by any other Member of the
Commission. The Chairman or the Member of the Commission shall preside over the
meetings. Regulation 3(3) further says that the absence of a member, other than
the Chairman or Member of the Commission, shall not invalidate the proceedings
of the Committee if more than half the members of the Committee had attended
3(3) which will have relevant bearing reads as under:
3(3) The absence of a member, other than the Chairman or Member of the
Commission, shall not invalidate the proceedings of the Committee if more than
half the members of the Committee had attended the meetings. Apart from
the Member of the Commission, as per the schedule referred to for the State,
the following members shall also be the members of the Committee which includes
the Chief Secretary to the Government;
Chief Secretary to the Government; Principal Secretary to Government, Revenue
Department; Senior most Divisional Commissioner and two nominees of the Central
Government. This Selection Committee after scrutiny of the records and calling
for personal interview will prepare a list and recommend the names of the
suitable candidates to the State Government concerned, which shall forward to
the Commission for its approval along with the records of all members of the
State Civil Service included in the list; the records of all members of the
State Civil Service who are proposed to be superseded by the recommendations
made in the list and the observations, if any, of the State Government on the
recommendations of the Committee to the Central Government and the Central
Government shall also forward their observations, if any, on the
recommendations of the Committee to the Commission. Thereafter, the Commission
as per Regulation 7 of 1997 shall consider the list prepared by the Committee;
observations, if any, of the Central Government or the State Government
concerned, on the recommendations of the Committee and approve the list subject
to the provisions of Regulation 7(2) of the Regulations, 1997. As per
Regulation 7(2); if the Commission considers it necessary to make any changes
in the list received from the State Government, the Commission shall inform the
State Government and the Central Government of the changes proposed and after
taking into account these comments, if any, of the State Government and the
Central Government, may approve the list finally with such modification, as may
in its opinion be just and proper. That list shall be forwarded to the Central
Government and the Central Government shall make appointment on the basis of
the list but if the Central Government is of the opinion that it is necessary or
expedient so to do in the public interest may not appoint any person and it is
within the domain of the Central Government and it need not record its reasons
or communicate the same to the Commission. In this scheme of the Rules, the
factual controversy shall be examined.
the present case eight vacancies were advertised and the process of recruitment
to these vacancies was undertaken. The State Government constituted a Screening
Committee for short-listing of the Officers not belonging to the State Civil
Service. The Committee was headed by Shri B.S.Patil, Chief Secretary to the
Government and four other Members who were the Secretaries to the Government of
Circular dated 30.3.2002 the Government had directed various Heads of the Department
to send a list eligible suitable officers who fulfil the aforesaid eligibility
criteria. In pursuance of this circular 79 names were received from different
Departments and their cases were scrutinized by the Screening Committee with
reference to their records for short-listing the names which could be sent to
the Commission for selection to the I.A.S. cadre. Since the number of persons
to be considered shall not exceed five times the vacancies proposed to be
filled up in that year, therefore, as against eight vacancies 40 candidates
were to be short-listed. The Screening Committee short-listed 40 candidates on
the basis of the service records out of the 79 candidates whose names were
received from different Departments.
the name of one more person was sent to the Selection Committee for selection
because of the order passed by the Tribunal.
in total names of 41 persons were sent for consideration against eight
vacancies. The Selection Committee after scrutinizing the cases and after
interviewing 39 candidates selected eight candidates and two candidates
remained absent. Though a petition was filed before the Tribunal by one person
who was not selected and stay order was obtained that was challenged before the
High Court and the High Court allowed the writ petition and vacated the interim
order passed by the Tribunal staying the selection and permitted the selection
to be taken to its logical conclusion subject to the condition that the order
passed by the Tribunal shall be subject to challenge before this Court. Then
one Special Leave Petition was filed before this Court against the order passed
by the Division Bench vacating the stay order passed by the Tribunal that
Special Leave Petition was dismissed on 23.7.2004.
the matter was finally heard by the Tribunal and the Tribunal set aside the
selection of eight selected candidates of the Karnataka cadre to the I.A.S. The
Tribunal was of the view that the Selection Committee was not properly
constituted as per the provisions of Regulation 3 of the Regulations, 1955 and
the Tribunal further took the view that the selection of eight candidates stood
vitiated as a result of mala fide on the part of Shri B.S.Patil, Chief
Secretary and Shri Subir Dutta, Member of the Commission who was the Chairman
of the Selection Committee. It was further observed by the Tribunal that the
selection was not fair and selection was being made in an arbitrary manner.
However, the name of two persons who were not short-listed was rejected by the
Tribunal on the ground that there was no arbitrariness for their non-inclusion.
That order was challenged by them before the High Court by filing writ
petition. The Division Bench of the High Court after examining the matter found
that all the grounds raised by the writ petitioners were not sustainable.
controversy involving the selection could be divided into two parts; (i) mala
fide and (ii) the constitution of the Selection Committee and the selection of
the candidates. So far as the first argument with regard to mala fide is
concerned, Shri Subir Dutta was not impleaded as a party, but subsequently, he
was impleaded as a party respondent. The first ground which was alleged is that
the select list is not only arbitrary but also a product of favouritism shown
to the selected candidates notwithstanding the fact that the appellants had
outstanding records but their names were not included solely for the reason
that the Selection Committee was headed by Shri Subir Dutta, Member of the
Commission and Shri B.S.Patil, the Chief Secretary to the Government being one
of the constituents of the Committee being interested in the candidature of
Respondents 5 to 12 before the Tribunal and as a result of such selection,
their candidatures have not been considered in a proper and objective manner
and they did not receive a fair treatment from the Selection Committee. It is
alleged that the selection was vitiated on the ground that Shri Subir Dutta,
who was the Chairman of the Selection Committee was appeased with the piece of
land in the city of Bangalore i.e. he was allotted a site in Bangalore
irrespective of the fact that whether he was eligible or not.
submitted that during the process of selection and on the basis of interview, a
site has been bartered away in favour of Shri Subir Dutta and in that the
former Chief Secretary to the Government, Shri B.S.Patil has shown a great
interest. Therefore, on account of this favouritism was shown to respondents 5
to 12 before the Tribunal, the applicants before the Tribunal have been denied
their legitimate selection and therefore, in sum total, the allegation of mala
fide against Shri Subir Dutta is that a site was allotted to him to appease him
and secure favourable selection in respect of Respondents 5 to 12.
Court in order to verify the element of truth sent for the original file
relating to the allotment of residential site to Shri Subir Dutta from
Bangalore Development Authority wherein it is noted that on 11.4.2003 a note
was placed by Shri B.S.Patil, the Chief Secretary, to the Chief Minister making
a request that a site be allotted to Shri Subir Dutta as he has attachment to
the State of Karnataka and he has been helpful both for selecting Bangalore for
bi- annual Air Shows and for grant of defence land for the purpose of road
network in Bangalore. For that on 17.4.2003 the Chief Minister approved the
proposal of the Chief Secretary for allotment of a residential site to Shri Subir
Dutta who was at that time the Defence Secretary. After that necessary formalities
for allotment was undertaken. On 17.4.2003 when a site was allotted to Shri Subir
Dutta, he was the Defence Secretary to Government of India and he was not a
Member of the Commission and he became a Member of the Commission only on
1.7.2003 and assumed charge on 4.7.2003 as Member of the Commission. The
selection took place in November, 2003. Therefore, the Division Bench of the
High Court rejected the allegation of mala fide to be far-fetched. We gave our
thoughtful consideration to this allegation. There is no correlation with this
selection. It is too far fetched to connect with this case that Shri Subir Dutta
who was given the residential site in lieu of his service rendered to the State
of Karnataka, would necessarily favour the candicates.
The short-listing was done by the Screening Committee headed by the Chief
Secretary along with four Secretaries of the State and there was no mala fide
intention in short-listing of these persons, now to think that just because Shri
Dutta was allotted some land so that necessarily he would favour these selected
candidates only is nothing but figment of imagination of the appellants. To
connect the selection with the previous allotment of land to Shri Subir Dutta
has hardly any connection between the two. In the selection process Shri Subir Dutta
was one of the Members along with others. All the Officers who were to be
selected belonged to Karnataka State and it is not specific that any of the selected candidates
has in any manner actively associated with the allotment of land to Shri Subir Dutta.
It is too remote to connect the selection of these candidates with the
allotment of the site to Shri Subir Dutta. We do not find any connection that
any of the selected candidates has in any manner directly or indirectly
associated himself in the allotment of the site in favour of Shri Subir Dutta.
As it appears from the file which was summoned by the High Court that the
proposal was mooted out by the Chief Secretary and it was approved by the Chief
Minister. Therefore, there appears no direct or indirect connection with the
selection of candidates and allotment of residential site in favour of Shri Subir
Dutta. As such, the allegations are too far-fetched to render the entire
selection invalid on the ground of so called mala fide. This is purely flight
of imagination and we strongly reject the allegation of mala fide against Shri Subir
Dutta, the Chairman of the Selection Committee.
far as the allegation of mala fide against Shri B.S.Patil is concerned, he was
not impleaded as a party. Therefore, the allegation of mala fide could not be
entertained by the Tribunal. As such, the allegation of mala fide against Shri B.S.Patil
could not be taken into consideration and rightly so, by the High Court as well
as by the Tribunal. The allegation of mala fide is very easy to be levelled and
it is very difficult to substantiate it, specially in the matter of selection
or whoever is involved in the decision making process. People are prone to make
such allegation but the Courts owe a duty to scrutinize the allegation
meticulously because the person who is making the allegation of animous
sometimes bona fidely or sometimes mala fidely due to his non-selection. He has
a vested interest. Therefore, unless the allegations are substantiated beyond
doubt, till that time the Court cannot draw its conclusion. Therefore, we
reject the allegation of mala fide.
Now, coming to the constitution of the Selection Committee and the selection
undertaken by the Committee, so far as the constitution of the Selection
Committee is concerned, one of the submissions was that the Divisional
Commissioner who was supposed to be the Member of the Selection Committee was
not there. Therefore, the whole selection stood vitiated. So far as this
argument is concerned, suffice it to say that the post of Divisional
Commissioner was abolished by the State Government with effect from 1.4.2003
and the said fact was informed to the Commission about the abolition of the
post and it was requested to suitably amend the schedule as per Regulation 3 of
the Regulations of 1955. Since the post of Divisional Commissioner was not in
existence and the same having been abolished there was no question of including
the Divisional Commissioner as a Member of Selection Committee specially when
the Government of Karnataka has already informed the Commission to amend the
schedule. When the post of Divisional Commissioner was not there that would not
render the selection or would not make the Selection Committee non-functional
as out of the seven Members six Members participated in the Selection Committee
and Regulation 3 clearly says that absence of a Member, other than the Chairman
or Member of the Commission, shall not invalidate the proceedings of the
Committee if more than half the Members of the Committee had attended its
meetings. Therefore, this contingency has already been taken care by Regulation
3(3) that in case any Member is unable to participate in the selection process
except the Member of the Commission and more than half of the members have
attended the meeting, then the proceedings of the Committee shall not vitiate
in the absence of such Member. As such the Selection Committee in the absence
of Divisional Commissioner cannot be said to be not properly constituted. More
so there is no prejudice caused to the appellants as out of the seven Members,
six Members of the Selection Committee were there which is more than 50%. As
such, nothing turns on this. We hold that the Selection Committee was properly
comes the question with regard to the selection of the candidates. Normally,
the recommendations of the Selection Committee cannot be challenged except on
the ground of mala fides or serious violation of the statutory Rules. The
Courts cannot sit as an appellate authority to examine the recommendations of
the Selection Committee like the Court of appeal. This discretion has been
given to the Selection Committee only and Courts rarely sit in court of appeal
to examine the selection of the candidates nor is the business of the Court to
examine each candidate and record its opinion. In this connection, learned
senior counsel for the appellants has taken us through various following
decisions of this Court.
AIR 2003 SC 3044 Surya Dev Rai v. Ram Chander Rai & Ors.
(1993) 3 SCC 319 P.M.Bayas V. Union of India
(1985) 4 SCC 417 Ashok Kumar Yadav & Ors. V. State of Haryana & Ors. Etc.
(1981) 1 SCC 722 Ajay Hasia & Ors. V. Khalid Mujib Sehravardi & Ors.
2007 (3) SCALE 219 Union Public Service Commission v. S.Thiagarajan & Ors.
learned senior counsel appearing for the private respondents invited our
attention to the following decisions of this Court.
(1976) 3 SCC 583 Dr.G.Sarana V. University of Lucknow & Ors.
(1980) @ SCC 355 Mrs. Kunda S.Kadam v. Dr.K.K.Soman & Ors.
(2002) 1 SCC 749 Ashok Nagar Welfare Association & Anr. V R.K.Sharma &
Senior Counsel for the Commission invited our attention to the following
decisions of this Court.
2 SCC 836 Union of India v. Mohan Lal Capoor & Ors.
(1981) 4 SCC 159 Lila Dhar V. State of Rajasthan & Ors.
(1985) 4 SCC 417 Ashok Kumar Yadav & Ors. V. State of Haryana & Ors. Etc.
1986 (Supp) SCC 617 R.S.Dass V. Union
of India & Ors.etc.
1987 (Supp) SCC 401 State of U.P. V. Rafiquddin & Ors. Etc.
(1988) 2 SCC 242 Union Public Service Commission V. Hiranyalal Dev & Ors.
(1983) 3 SCC 241 Mehmood Alam Tariq & Ors. V. State of Rajasthan & Ors.
(1990) 1 SCC 305 Dalpat Abasaheb Solunke & Ors. V. Dr.B.S.Mahajan &
1992 Supp. (2) SCC 481 National Institute of Mental Health And Neuro Sciences
v. Dr.K.Kalyana Raman & Ors.
(1993) 1 SCC 17 Indian Airlines Corporation v. Capt. K.C.Shukla & Ors.
1993) 3 SCC 319 P.M.Bayas v. Union of India & Ors. Etc.
1994 Supp. (1) SCC 454 C.P.Kalra v. Air India through its Managing Director, Bombay & Ors.
(1997) 1 SCC 280 Anil Katiyar (Mrs.) v. Union of India & Ors.
(1997) 9 SCC 151 All India State Bank OfficersFederation & Ors. V. Union of India & Ors. Etc.
(1998) 3 SCC 694 Union of India & Anr. V. N.Chandrasekharan & Ors.
(2004) 6 SCC 786 Inder Parkash Gupta v. State of J & K & Ors.
(2006) 6 SCC 395 K.H.Siraj v, High Court of Kerala & Ors.
Keeping in view the ratio laid down by this Court in several decisions, now we
shall examine the argument of learned senior counsel for the appellants which
had been addressed. But we may at the very out set observe that the Court while
considering the proceedings of the Selection Committee does not sit in a court
of appeal. Courts have limited scope to interfere, either selection is actuated
with mala fide or statutory provisions have not been followed. In the present
case, 39 candidates were examined by the Selection Committee for being
recommended for appointment to the I.A,S. The selection process took place
between 24.11.2003 and 28.11.2003 whereby the Selection Committee scrutinized
the service records of the individual candidates and interviewed them and the
Selection Committee selected those candidates who were found to be having
outstanding merit and ability. The Commission has fixed 50 marks for scrutiny
of the service records and 50 marks were allotted for interview. It was also
decided by the Commission that the candidates would be eligible for selection
only if they secure 50% marks in each of the two components i.e. 25 marks in
the scrutiny of the service records and 25 marks in the interview. The
Commission has further laid down the norms for awarding marks for the scrutiny
of service records. 10 marks are awarded to a candidate if on an assessment of
service record he was found to be outstanding, 8 marks if the service record
was found to be very good and 5 marks if it was good. Candidates who have
failed to secure 25 marks in the interview were not held to be qualified.
Similarly, the candidates who failed to secure 25 marks on the basis of the
service records were also not held to be eligible. However, on facts no person
was rejected on the ground that he failed to secure 25 marks either on the
basis of the service records or on the basis of interview. The Tribunal while
scrutinizing the records sent by the Selection Committee set aside the
selection of eight candidates namely Sarvashri Anwar Pasha and K.Ramanna Naik,
who according to the Tribunal were wrongly selected. The block period is five
years for which the confidential records of the candidates were scrutinized by
the Selection Committee i.e. from 1997-98 to 2001-02. It is alleged that the
confidential report of Shri Anwar Pasa for the year 1998-99 was written on
14.6.2002 and for the year 1999-2000 was written on 15.6.2002. It is further
alleged that these confidential reports were written beyond the time limit
prescribed by Rule 8 of the Karnataka Civil Services (Performance Reports)
Rules, 1994 (hereinafter to be referred to as the Rules of 1994) and
the same could not have been looked into by the Selection Committee. Therefore,
the selection of Shri Anwar Pasha was invalid. It was found by the Selection
Committee that the Annual Confidential Reports of this Officer for these two
years were not written within the time limit prescribed as required under Rule
8 of the Rules of 1994. But it was pointed out that Rule 8 of the Rules of 1994
was amended in 1999 and the time limit prescribed was done away with
retrospective effect. It was provided as per clause (b) of Rule 5 of the
amending Rules of 1999 that the reports written or reviewed or accepted in
accordance with the 1994 Rules as amended in the year 1999 shall be deemed to
be valid for the purpose of that rule. But in view of the retrospective
amendment of the Rules of 1999, the time limit having been done away with the
reports could have been taken into consideration but it was further pointed out
that the Rules of 1994 were repealed in 2000 and the provisions of Karnataka
Civil Services (Performance Reports) Rules, 2000 (hereinafter to be referred to
as the Rules of 2000) came into force. Rule 13 of the Rules of 2000 provided
that the repeal shall not affect the previous operation of the 1994 Rules or
anything duly done or suffered there under or affect any right, liability or
obligation acquired, accrued or incurred under those Rules.
so far as the annual confidential reports in respect of Shri Anwar Pasa which
were written after the period of two years should not have been taken into
consideration by the Selection Committee, does not survive because the Rules of
2000 repealed the Rules of 1994 and consequential amendment of Rules of 1999
was done away with. Therefore, the reports for the years 1998-99 and 1999-2000
cannot be taken away and these two ACRs cannot be ignored and it has been
rightly not ignored by the Selection Committee. More so, if the ACRS are not
written or reviewed, then the incumbent is not responsible for it and why
should he suffer on account of that. The authority who is under obligation to
complete the formalities having failed to do so till the lapse of time why the
incumbent should be punished. We fail to appreciate the submissions of the
parties before the Tribunal and the view taken by the Tribunal also. It was
also pointed that the operation of the Rules of 1999 was stayed by the Tribunal,
that may be so. But even thereafter also when the Rules of 2000 have repealed
the Rules of 1994, then what turns on the stay order granted by the Tribunal
and we cannot hold the incumbent responsible for it and deprive him the due
consideration if there is failure on the part of the officers to discharge
their duties in writing the ACRs, the incumbent should not be allowed to
we are of opinion that it is not a case in which there was any statutory breach
of Rules committed by the Selection Committee in taking into consideration the ACRs
of Shri Anwar Pasha. In the case of another candidate i.e. Shri K.Ramanna Naik,
his confidential reports for the years 2000-2001 and 2002-2002 were not written
in time in terms of Rule 8 of the Rules of 1994. Therefore, special reports
were obtained, that too is also covered by the Karnataka Civil Services
(Performance Reports) (Amendment) Rules, 1996. Rule 11-A says that when
performance reports in respect of officers are not available for one or more
years, the appointing authority, for the reasons to be recorded in writing, may
direct the concerned reporting officer or the reviewing authority to prepare
and submit the report within a specified time for the entire period or for each
year for which the report was not written. There again the question is failure
on the part of the reporting officer or the reviewing authority not writing the
report of the officer for which the officer cannot be made to suffer.
Therefore, in this background, provisions have been made for special reports and
in the administrative jurisprudence special reports can be sought for in
respect of any officer whenever his case comes for consideration and if the
Selection Committee wants to have the up to date report of that incumbent. It
is the established practice to call for such kind of special reports. The idea
is that for not reporting the annual confidential reports of the incumbent, why
the incumbent should be made to suffer. Therefore, the Selection Committee or
the concerned authority can always ask for the annual confidential reports
which were not written for a particular year by the reporting authority or by
the reviewing authority or in some cases it can also seek a special report.
Such practice cannot be said to be unusual practice in administrative jurisprudence.
In the present case, it appears that a special report in respect of Sh. K. Ramanna
Naik was obtained and that was considered by the Selection Committee.
this procedure adopted by the Selection Committee cannot be found to be
arbitrary or in any way discriminatory. Consideration of both these Officers
cannot be faulted on that ground.
is also contended that the marking given by the Selection Committee was
arbitrary. The grievance was that confidential report of Shri S.Daya Shankar
for the year 2000-2001 was not available and in case of Sri R. Pramapriya, the
confidential report for the year 1997=98 was not available. Yet the reports of Shri
S.Daya Shankar was assessed to be outstanding and Shri R.Ramapriya was assessed
to be very good without there being any basis for it. This was found by the
Tribunal to be patently arbitrary. It is the selection process and what
prevailed with the Committee after review of the annual confidential reports of
all these officers cannot be dilated in writing. When the Selection Committee
sits and considers the candidature of both the officers and in case of both the
officers, looking at the 5 years annual confidential reports, one is found to
be over all outstanding and the other is found to be over all very good, this
marking of the Selection Committee cannot be interfered with in extraordinary
jurisdiction or even by the Tribunal. We fail to understand how the Tribunal
can sit as an appellate authority to call for the personal records and constitute
selection committee to undertake this exercise.
power is not given to the Tribunal and it should be clearly understood that the
assessment of the Selection Committee is not subject to appeal either before
the Tribunal or by the Courts. One has to give credit to the Selection
Committee for making their assessment and it is not subject to appeal. Taking
the over all view of the ACRs of the candidates, one may be held to be very
good and another may be held to be good. If this type of interference is permitted
then it would virtually amount that the Tribunals and the High Courts started
sitting as Selection Committee or act as an appellate authority over the
selection. It is not their domain, it should be clearly understood, as has been
clearly held by this Court in a number of decisions. Our attention was invited
to a decision of this Court in R.S.Dass (supra)[ 1986 (Supp.) SCC 617] wherein
at paragraph 28 it was held as follows:
It is true that where merit is the sole basis of promotion, the power of
selection becomes wide and liable to be abused with less difficulty. But that
does not justify presumption regarding arbitrary exercise of power. The
machinery designed for preparation of Select List under the regulations for
promotion to All India Service, ensures object and impartial selection. The
Selection Committee is constituted by high ranking responsible officers
presided over by Chairman or a Member of the Union Public Service Commission.
There is no reason to hold that they would not act in fair and impartial manner
in making selection. The recommendations of the Selection Committee are
scrutinized by the State Government and if it finds any discrimination in the
selection it has power to refer the matter to the Commission with its
recommendations. The Commission is under a legal obligation to consider the
views expressed by the State Government along with the records of officers,
before approving the Select List.
Selection Committee and the Commission both include persons having requisite knowledge,
experience and expertise to assess the service records and ability to adjudge
the suitability of officers. In this view we find no good reasons to hold that
in the absence of reasons the selection would be made arbitrary. Where power is
vested in high authority there is a presumption that the same would be
exercised in a reasonable manner and if the selection is made on extraneous
considerations, in arbitrary manner the courts have ample power to strike down
the same and that is an adequate safeguard against the arbitrary exercise of
Our attention was invited to a decision of this Court in Union Public Service
Commission v. Hiranyalal Dev & Ors etc.[(1988) 2 SCC 242] wherein it was
held as follows:
The mere fact that the Selection Committee erred in taking into account the
non-existent adverse remarks does not necessarily mean that the respondent
should have been categorized or considered as very good vis-`-vis
others who were also in the field of choice. How to categorize in the light of
the relevant records and what norms to apply in making the assessment are
exclusively the functions of the Selection Committee. This function had to be
discharged by the Selection Committee by applying the same norm and tests and
the selection was also to be made by the Selection Committee as per the
relevant rules. The powers to make selection were vested unto the Selection
Committee under the relevant rules and the Tribunal could not have played the
role which the Selection Committee had to play by making conjectures and
surmises. The proper order for the Tribunal to pass under the circumstances was
to direct the Selection Committee to reconsider the merits of the respondent vis-`-vis
the official who was junior to him. The jurisdiction of the Supreme Court under
Article 136 in this respect is, however, wider and cannot be equated with that
of the Tribunal.
Our attention was invited to a decision of this Court in Dalpat Abasaheb Solunke
& Ors. V. Dr.B.S.Mahajan & Ors. [(1990) 1 SCC 305] wherein it was
observed as follows:
It is not the function of the court to hear appeals over the decisions of the
Selection Committees and to scrutinize the relative merits of the candidates.
Whether a candidate is fit for a particular post or not has to be decided by
the duly constituted Selection Committee which has the expertise on the
subject. The court has no such expertise. In the present case the University
had constituted the Committee in due compliance with the relevant statutes. The
Committee consisted of experts and it selected the candidates after going
through all the relevant material before it. In sitting in appeal over the
selection so made and in setting it aside on the ground of the so called
comparative merits of the candidates as assessed by the court, the High Court
went wrong and exceeded its jurisdiction.
Similarly in National Institute of Mental Health and Neuro Sciences v. Dr.K.Kalyana
Raman & Ors. [1992 Supp. (2) SCC 481], this Court held that the expert
committee finding should not be lightly inferred. It was held as follows :
The function of the Selection Committee is neither judicial nor adjudicatory.
It is purely administrative. Where selection has been made by the assessment of
relative merits of rival candidates determined in the course of the interview
of candidates possessing the required eligibility and there is no rule or
regulation brought to the notice of the Court requiring the Selection Committee
to record reasons, the Selection Committee is under no legal obligation to
record reasons in support of its decision of selecting one candidate in
preference to another. Even the principles of natural justice do not require an
administrative authority or a Selection Committee or an examiner to record
reasons for the selection or non-selection of a person in the absence of
Our attention was invited to a decision of this Court in P.M.Bayas v. Union of
India & Ors. [(1993) 3 SCC 319]. In this case with regard to the IAS
(Recruitment) Rules, 1954 which contemplated that special cases from among
persons and special circumstances occurring in the rules could justify the
selection of the incumbents or not, in that context, their Lordships held as
We are satisfied that there were special circumstances before the
State Government to make recruitment under the Regulations. In the face of
clear pleadings on the record the Tribunal was not justified in holding that
there as no material on the record to show the existence of special circumstances.
The Tribunal was wholly unjustified in asking the Central Government to show
the existence of special circumstances in terms of Rule 8(2) of the
Rules. As interpreted by us the scheme of the Rules and the Regulations clearly
show that it is the State Government which has to be satisfied regarding the
existence of special circumstances.
Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.) v.
Union of India & Ors. [(1997) 1 SCC 280], it was observed as follows:
question is whether the action of the DPC in grading appellant as very
good can be held to be arbitrary. Shri G.L.Sanghi, the learned Senior
Counsel appearing for the Union Public Service Commission, has placed before us
the confidential procedure followed by the DPCs in the Union Public Service
Commission for giving overall gradings, including that of
outstanding, to an officer. Having regard to the said confidential
procedure which is followed by the Union Public Service Commission, we are
unable to hold that the decision of the DPC in grading the appellant as
very good instead of outstanding can be said to be
arbitrary. No ground is, therefore, made out for interference with the
selection of Respondent 4 by the DPC on the basis of which he has been appointed
as Deputy Government Advocate. But, at the same time, it must be held that the
Tribunal was in error in going into the question whether the appellant had been
rightly graded as outstanding in the ACRs for the years 1990-91 and
1991-92. The observations of the Tribunal that out of the two
outstanding gradings given to the appellant one outstanding
grading does not flow from various parameters given and the reports entered
therein, cannot, therefore, be upheld.... Therefore, in view of catena of
cases, Courts normally do not sit in the court of appeal to assess the ARCs and
much less the Tribunal can be given this power to constitute an independent
Selection Committee over the statutory Selection Committee. The guidelines have
already been given by the Commission as to how the ACRs to be assessed and how
the marking has to be made. These guidelines take care of the proper scrutiny
and not only by the Selection Committee but also the views of the State
Government are obtained and ultimately the Commission after scrutiny prepares
the final list which is sent to the Central Government for appointment. There
also it is not binding on the Central Government to appoint all the persons as
recommended and the Central Government can withhold the appointment of some
persons so mentioned in the select list for reasons recorded. Therefore, if the
assessment of ACRs in respectof Shri S.Dayashankar and Shri R.Ramapriya should
have been made as outstanding or very good it is within the
domain of the Selection Committee and we cannot sit in the court of appeal to
assess whether Shri R.Ramapriya has been rightly assessed or Shri Dayashankar
has been wrongly assessed. The overall assessment of ACRs of both the Officers
were taken; one was found to be outstanding and the second one was
found to be very good. This assessment cannot be made subject of
Courts or Tribunals scrutiny unless actuated by mala fide.
the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri Puttegowda, the
assessment of the reporting officers and the reviewing officers in the State
have been found to be outstanding. But the Selection Committee
downgraded the assessment to very good and this has provided grounds
to the Tribunal to interfere with the selection of others. The Selection
Committee normally abides by the assessment made by the reporting officer and
the reviewing authority. But the Selection Committee is not powerless. After
reviewing the candidates performance, the Selection Committee can
certainly make its own assessment. The guidelines which have been issued by the
Commission also enables the Selection Committee to assess the remarks made by
the reporting officer or the reviewing officer and after taking into
consideration various factors like the meritorious work done or any punishment
or adverse remarks made or subsequently expunged on representation can review
the assessment about the candidates. Such review of the assessment is fully
within the competence of the Selection Committee and in this connection the
observations of this Court may be relevant in Ramanand Prasad Singh & Anr.
V. Union of India & Ors. Etc. [(1996) 4 SCC 64], which reads as under :
The Committee applies its mind to the service records and makes its own
assessment of the service records of the candidates marking them as
outstanding, very good, good and so on. The selection Committee does not
necessarily adopt the same grading which is given by the Reporting/ Reviewing
Officer in respect of each of the candidates. In fact the Selection Committee makes
an overall relative assessment of the confidential report dossiers of the
officers in the zone of consideration. Thus, it does not evaluate the
confidential report dossier of an individual in isolation. It is after this
comparative assessment that the best candidates are put in the Select List.
Our attention was invited to a decision of this Court in UPSC v. K.Rajaiah
& Ors. [ (2005) 10 SCC 15]wherein it has been held as follows:
That being the legal position, the Court should not have faulted the so-called
down gradation of the first respondent for one of the years. Legally speaking,
the term downgradation is an inappropriate expression. The power to
classify as outstanding, very good , good and
unfit is vested with the Selection Committee. That is a function
incidental to the selection process. The classification given by the State
Government authorities in the ACRs is not binding on the Committee. No doubt,
the Committee is by and large guided by the classification adopted by the State
Government but, for good reasons, the Selection Committee can evolve its own
classification which may be at variance with the gradation given in the ACRs.
That is what has been done in the instant case in respect of the year 1993-94.
Such classification is within the prerogative of the Selection Committee and no
reasons need be recorded, though it is desirable that in a case of gradation at
variance with that of the State Government, it would be desirable to record
reasons. But having regard to the nature of the function and the power confided
to the Selection Committee under Regulation 5(4), it is not a legal requirement
that reasons should be recorded for classifying an officer at variance with the
State Governments decision. Therefore, the view taken by the High
Court is correct that it is always within the power of the Selection Committee
to record its own assessment about the selection which may be at variance with
that of the reporting officer or reviewing officer.
was also pointed out that in the case of Shri N. Sriraman and Shri K.Ramana Naik,
the Selection Committee downgraded their reports from outstanding to
very good yet they were selected.
is the case with Sri K.L.Lokanatha who has not been selected.
wise the Selection Committee upgraded the assessment for the year 2001-02 from
very good to outstanding yet he could not be selected.
this is also the process of selection and the Selection Committee constituted
by the Commission and headed by the Member of the Commission, we have to trust
their assessment unless it is actuated with malice or apparent mistake
committed by them. It is not in the case of pick and choose, while selection
has been made rationally. The selection by expert bodies unless actuated with
malice or there is apparent error should not be interfered with. Lastly, the
High Court considered the case of the two candidates who were eliminated by the
Selection Committee and their cases were not sent to the Commission for
selection to the I.A.S.cadre. The High Court found that this was the selection
process by the Screening Committee headed by the Chief Secretary and these
persons were not found more meritorious to be recommended for appointment. This
assessment of the Screening Committee was found by the High Court to be proper
and there was nothing on record to show that the candidates who were
short-listed were not meritorious.
a result of our above discussion, we find that there is no merit in these
appeals and consequently, the appeals are dismissed.
would be no order as to costs.
Petition No.131 of 2006:
view of the order passed in the civil appeals, we find no merit in the contempt
petition and the same is dismissed.